Stemper v. Higgins | Cases | Westlaw

I concur in the result, although with much hesitancy. In all the cases in which it has been held that irregularities did not vitiate the poll, there was a legal election district in which an election was authorized to be held, and the irregularity or informality went merely to the manner of conducting it. But if a village is a part of the election district, composed of the township in which it is situated, then there was in this case no such election district as the village of Madelia, and no authority for holding any such election. The existence of the village for mere village purposes would, so far as concerns a state election, cut no figure whatever. In the eye of the law, the case would be one where the inhabitants of a part of an election district, without color of right, assumed to hold an election of their own, separate from and independent of the legal election in the election district in which they resided. The village officers who assumed to conduct it were not even election officers de facto, under color of election or appointment, but mere usurpers. I fail to see how they, or any one who cast a ballot at such an election, could be held liable for any violation of the election laws. Any elector who voted there had the right to and might have also voted at the lawful polling place in that district. All our electoral rights depend on written law, and in all matters of substance the requirements of this law must be strictly followed; otherwise society would soon become disorganized. To attempt to sustain a poll like this upon principle *228 would involve a laxity of doctrine regarding popular elections that would, I fear, be a dangerous precedent. If it is to be sustained, I prefer to do so solely upon grounds of public policy and necessity, arising out of a peculiar and exceptional state of facts compelling such a decision in order to prevent serious public evils. As stated in the opinion, the law of 1883 made every village organized under it “one election district,” without any qualification. The act of 1885, which superseded that of 1883, was so vague and blind upon the question as to leave it in great doubt. It is a matter of common knowledge that, prior to the decision of the “Spaude Case” by this court, the prevailing opinion was that villages still remained separate election districts for all purposes. In many villages in the state elections were conducted in good faith upon this construction of the law, and generally acquiesced in and acted upon as legal and valid. The results have become so interwoven in the affairs of government, both of a political and financial nature, that to now hold such elections invalid would in all probability result in much confusion and great public inconvenience. This mode of holding elections was, according to the construction which the court has since placed upon the statute, an error; but the error was so common that it must now have, as to the past, the force of law. It is one of those cases which even courts are sometimes justified in recognizing as compelling a decision contrary to strict principle, on grounds of public necessity, in order to prevent serious public evils. In my judgement it is only upon this ground that this poll can be sustained.

Concurring in the result herein, I deem it but proper to say that my views upon the main question in issue have been wholly changed since formed and expressed while serving as district judge, and upon the trial of an action in which was involved the right to have counted the vote cast upon the day of the general election in 1886, in a village organized as is the village of Madelia, and before the decision of this court in State v. Spaude, 34 N. W. Rep. 164, in which I took no part, was made. The change mentioned **99 has been brought about by a discussion and consideration of the case at bar, and of the evils which might follow should it be held *229 that any part of one or more organized townships, having the statutory number of legal voters, may, by a majority vote, detach itself, and establish a municipality without any regard whatsoever to the rights or wishes of those who may happen to reside outside of the ambitious territory, and that thereafter, from time to time, “additional and adjacent territory,” upon the whim of its resident voters, may attach itself to the village without consulting its inhabitants, or anybody else, and thus finally wipe the parent township or townships entirely out of existence. To hold villages to be separate election districts is to decide that they are distinct municipal corporations for all purposes. I also prefer and do concur in the views of my brother Justice MITCHELL upon the question discussed by him in his concurring opinion.